August 18, 2005

The Return of "Attorneys Behaving Badly": Just Because It Said What It Said, Don't Pretend You Didn't Know What It Meant to Say

"Selective Literalism Syndrome" [SLS] is a condition affecting many practicing attorneys. The principal clinical sign is an aggravated tendency on the part of the attorney to shut down those language centers of his or her brain that would otherwise draw meaning from the context in which a statement is made, and to stimulate instead the neural pathways that focus on the interpretation of a text that will be least likely to conform to its author's intent. There is as yet no proven treatment for this condition. Recent experimental studies suggest, however, that a liberal administration of Sanctions Therapy may eventually produce results in some who suffer under the burden of SLS.

The Court of Appeal for the Second District provides an enlightening SLS case study arising from an insurance dispute.

Retailer Sears, Roebuck & Co. is enmeshed in litigation with its insurer, National Union Fire Ins. Co., over National Union's refusal to pay Sears' claim that it lost $20 Million through theft committed by Focus Media, an advertising agency Sears had hired. Attorney Geoffrey Mousseau represented several of Focus Media's principals, who were witnesses in (but not parties to) the insurance litigation. Sears concluded that Mousseau had assisted National Union in formulating defenses to Sears' claims under the insurance policy, and sought to obtain records from Mousseau to prove or disprove that theory.

Sears' attorneys served Mousseau with five subpoenas, some for production of records and some to compel his appearance for questioning in a deposition. Mousseau did not respond. Sears sought court orders to enforce its subpoenas. The trial court appointed Malcolm Lucas, the retired Chief Justice of the California Supreme Court, to serve as a referee to oversee and resolve the various disputes over production of evidence. Mousseau first unsuccessfully challenged the appointment of Justice Lucas. He next succumbed to advanced SLS, triggered by an innocent clerical error in Sears' subpoenas:

Mousseau’s later opposition to the merits of the discovery motion was based on a typographical error in Sears’ document production subpoenas: although those subpoenas directed Mousseau to produce the requested documents at the address of Sears’ lawyers, they also directed him to produce the documents to the deposition officer, then mistakenly identified Mousseau as the deposition officer. According to Mousseau, he fully complied with the document subpoenas because, in accordance with their instructions, he delivered the specified documents to himself. . . . Mousseau [also] contended . . . that Sears canceled the deposition when a proposed deal calling for Mousseau’s advance production of the requested documents fell through.

Declarations and correspondence submitted in Sears’ moving and reply papers told a different story. When synthesized, they show Sears’ lawyers trying to pin down Mousseau regarding whether he would appear for the September 29 deposition as scheduled, with the lawyers agreeing to Mousseau’s alternate date of October 1, 2003, as well. Sears’ evidence showed that the deposition was canceled in order to avoid unnecessary costs only because Mousseau refused to confirm whether he would attend. They also show frantic attempts to contact Mousseau and ask why he missed the September 20 document production deadline. During phone conversations with one of Sears’ lawyers during the week of September 22, 2003, Mousseau acknowledged his failure to produce the documents on time and promised to deliver them by courier on September 26. He did not. On October 2, 2003, Mousseau faxed to Sears’ lawyers a letter dated September 25 stating that he had complied with the document subpoenas by producing the documents to himself. In response to an October 17 letter from Sears’ lawyers that recounted these events, Mousseau sent a fax on November 6 that stated: 'Your letter . . . requested my assistance. I presumed my silence would have spoken sufficiently loudly to you. Since you did not get the message, let me be more clear: I decline.' The faxed letter restated Mousseau’s insistence that he had complied with the document subpoenas and that Sears had canceled his deposition due to a scheduling conflict. At no time before October 2 did Mousseau express any doubts about his obligations under the document production subpoenas.

Mousseau's arguments did not succeed: Not only was he ordered to comply fully with his obligations under the subpoenas, the referee and trial court imposed monetary sanctions of more than $20,000 on Mousseau, payable to Sears. Mousseau appealed from all of the orders against him; the Court of Appeal affirmed the orders, showing little sympathy for Mousseau's condition:

Mousseau’s reliance on Sears’ mistaken designation of him as the deposition officer to whom he should deliver the subpoenaed documents is not a good-faith contention. Not only did the subpoenas call for production at the address of Sears’ lawyers, Mousseau, as a lawyer himself, must have known what was intended. Simply put, his contention that he could comply by delivering the documents to himself is preposterous. Second, regardless of what Mousseau should have known, the evidence shows that he in fact understood his obligations under the subpoenas. According to the evidence from Sears’ lawyers, Mousseau acknowledged his failure to deliver the documents on time and promised to do so quickly. From this, we infer that Mousseau in fact knew he was obliged to produce the documents to Sears’ lawyers. His repeated failures to do so were sanctionable.

[Underscoring added.]

It is to be hoped that someone learned a lesson or two from this experience, and that it will spur further research toward a cure for the debilitating and embarrassing illness that is SLS.~~~The decision in Sears, Roebuck and Co. v. National Union Fire Ins. Co. of Pittsburgh (August 15, 2005), Case No. B176666, can be accessed at these links in PDF and Word formats. [Note: Links expire approximately 120 days following issuance of the opinions; the opinions should still be accessible thereafter by substituting "archive" for "documents" in the URL.]

Prior instances of Attorneys Behaving Badly can be found in the Decs&Excs "Law of Lawyering" archive.